FIRST APPEAL NO. 1105 OF 2019

6th March 2020

Petitioner Counsel: Shri R. G. Bagul
Respondent Counsel: Shri N. P. Lambat
Act Name: Railways Act, 1989 Code of Civil Procedure, 1908

HeadLine : Railway accident - Compensation - Claim by elder brother - Not tenable
Railway accident - Claim for compensation - Dependent - Who is not

Section :
Section 123(b) Railways Act, 1989 Section 2(11) Code of Civil Procedure, 1908

Cases Cited :
Paras 3, 6: Union of India (UOI) Through General Manager, Northern Railway Vs. Phoolsaye and anr., decided on 20.05.2010
Para 7: Ahmedabad Vs. Ramanbhai Prabhatbhai and another, reported in AIR 1987 Supreme Court 1690

JUDGEMENT

1. Short issue is involved in this appeal in respect of locus standi of the appellant to get amount of compensation.

2. The facts of the present appeal can be summarized as under:
On 24.04.2014, deceased Samadhan Vibhan Bagul was travelling from Pachora to Dombivali by unknown train with valid journey ticket no. V56927800 purchased from Pachora Railway Station. As there was heavy rush in the train, the deceased was standing near the door of train compartment. However, when the train reached at KM No. 272/30-35 Up road Railway Station Hiswal, the train received a sudden jerk and, therefore, deceased fell down from the running train and died on the spot.
Claim was filed by father and mother of the deceased, namely, Virbhan Zipruji Bagul and Vimalbai Virbhan Bagul. During the pendency of the claim petition both parents died. Therefore, the appellant (elder brother of the deceased) Deepak s/o Virbhan Bagul was brought on record as legal heir of the deceased-applicants. The Tribunal came to the conclusion that appellant is not a dependent as defined under Section 123(b) of the Railways Act, 1989 (for short the “Act”) and, therefore, rejected the claim. Hence, this appeal.

3. Heard Shri Bagul, learned Advocate for the appellant. He has submitted that appellant was not claimant before the Tribunal and, therefore, claim is wrongly rejected by the Tribunal holding that the appellant is not dependent as defined under Section 123(b) of the Act. He has pointed out judgment of Punjab and Haryana High Court in the case of Union of India (UOI) Through General Manager, Northern Railway Vs. Phoolsaye and anr. decided on 20.05.2010. He has submitted that in view of the judgment of Punjab and Hariyan High Court, the appellant is entitled for the claim.

4. Learned Advocate Shri Bagul has submitted that appellant is elder brother of the deceased. He is not dependent as defined under Section 123 (b) of the Act and, therefore, the Tribunal rejected the claim.

5. Dependants of the deceased who died in railway accident are defined under Section 123(b) of the Act which is reproduced as under:
(b) “dependant” means any of the following relatives of a deceased passenger, namely:—
(i) the wife, husband, son and daughter, and in case the deceased passenger is unmarried or is a minor, his parent;
(ii) the parent, minor brother or unmarried sister , widowed sister, widowed daughter-in-law and a minor child of a predeceased son, if dependant wholly or partly on the deceased passenger;
(iii) a minor child of a pre-deceased daughter, if wholly dependant on the deceased passenger;
(iv) the paternal grand parent wholly dependant on the deceased passenger;”

6. Admittedly, the appellant is not dependant as defined under Section 123(b) of the Act. Learned Advocate Shri Bagul has submitted that though he is not dependent as defined under Section 123(b) of the Act, but in view of the judgment of Punjab and Haryan High Court he is entitled for compensation. Learned Advocate has submitted that same fact was before the Punjab and Haryana High Court. Material observations of the Punjab and Haryana High Court in the case of Union of India (UOI) Through General Manager, Northern Railway Vs. Phoolsaye and anr. in paragraph nos. 3, 4 and 5 are reproduced below:
“[3] In the present appeal, the only argument raised by learned Counsel for the appellant is that respondents are not the dependents of deceased-Kantu, therefore, the amount of compensation could not have been awarded to them. In response thereto, learned Counsel for the respondents has submitted that even if for the sake of arguments, it is presumed that the respondents who happened to be brothers of the deceased Kantu’ are not the dependents of the deceased-Kantu but it has been awarded as legal representatives of deceased Timbu, who had filed application for claim as dependents of deceased-Kantu. It is also submitted that legal representatives is not defined in the Railways Act, 1989 (for short ‘the Act’) but according to Section 2(11) of the Code of Civil Procedure, 1908 (for short ‘CPC’) ‘Legal Representative’ means a person who in law represents the estate of a deceased person and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued.
[4] I have heard both learned Counsel for the parties.
[5] In my considered view, the objection raised by learned Counsel for the appellant is totally unfounded and misplaced because even if respondents are not dependents of deceased Kantu it hardly makes any difference because the compensation has been awarded to them not as dependents of deceased-Kantu but as the Legal Representatives of their father Timbu, who filed the claim petition as dependent of deceased Kantu and according to definition of legal representatives, the respondents in any case, would have been entitled to the amount of compensation. Thus, I do not find any illegality in the order of the learned Tribunal in awarding compensation to the respondents as legal representatives of the dependentTimbu, who had filed claim petiton on account of the death of Kantu”.

7. Learned Advocate Shri Lambat for the respondent has pointed out judgment of this Court in First Appeal No. 365/2003 decided on 26.11.2009. This Court relying on the judgment of the Hon’ble Supreme Court in the case of Gujarat State Road Transport Corporation, Ahmedabad Vs. Ramanbhai Prabhatbhai and another reported in AIR 1987 Supreme Court 1690, came to the conclusion that the Court cannot insert any word about the dependent. It is for the Parliament to add or delete the names of the persons who are entitled for compensation as a dependent. This Court has came to the conclusion that it is not defined under Section 123(b) of the Act showing that elder brother is the dependent. In First Appeal No. 365/2003, this Court has recorded its findings in paragraph nos. 4 and 5 as under:
“4. I have gone through the impugned judgment and award and having heard learned Counsel for the rival parties and having examined the definition of dependent under Section 123 (b) of the Railways Act, I find that in its wisdom the Parliament has specifically included particular class of persons as dependents. This list in Section 123 (b) of the Railways Act cannot be said to be inclusive. Whosoever are mentioned in the list are entitled to compensation. This Court is not entitled to add anything to the said list against will of the Parliament. Therefore, this Court will have to go by the persons named in the list of the dependents in the definition. It will not be possible for this Court also to overreach the will of the Parliament in making certain persons eligible for getting compensation in the accident cases in Railways. As regards submission that the appellants were dependents and since deceased was unmarried and had no parents, I find that the said submission will have to be rejected since the appellants have not been recognized as dependents by the Railways Act and therefore, I hold that the appellants are not the dependents within framework of law.
5. Coming to the decision in the case of Gujarat State Road Transport Corporation, Ahmedabad, cited supra, I find that the provisions under the Motor Vehicles Act in relation to legal representatives and legal heirs were deliberately not amended by the Parliament despite the fact that it was pointed out that these two categories are different and cannot be dependents of the deceased. But the Supreme Court in the said decision while representing the will of the Parliament observed that the Parliament made no distinction in legal representatives and legal heirs and that it was not for the Supreme Court to do so. In the light of the above interpretation made by the Hon'ble Supreme Court, I do not think that the submission made by learned Counsel for the appellant on this aspect can be said to be well founded. In the result, I do not find any merit in the present first appeal. The same is, therefore, dismissed. No order as to costs.”

8. Admittedly, the appellant is not the dependent of the deceased. He is elder brother of the deceased. As per submission of learned Advocate for the appellant, after the death of the parents, he is legal heir of the original claimants. Even though, it is held that he is legal heir, then also, he is claiming compensation in respect of death of his younger brother. He is not entitled to claim compensation as an elder brother. It is not defined under Section 123(b) of the Act. Original claimants/dependents are no more. If the claim is allowed, ultimately result is that the appellant i.e. elder brother will get the amount of compensation which is against the provision of Section 123(b) of the Act.

9. In that view of the matter, appeal is dismissed with no order as to costs.

Decision : Appeal dismissed